Francis Hopkinson.

The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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letter of difmiffion, difcharged Montgomery from
then- fervice, and put another m after on board.
"Whereupon Montgomery Hbelled againfl: the ow-
ners in the admiraky to compell them to fuliil
their contrad" with him.

The queflion was, whether owners could dif-
mifs the mailer they had appointed before the
completion of the voyage, after he had figned
billsof lading for the cargo, and (hipped his ma-
riners, without the owners fhev/ing fufEcient
caufe for fuch difmiilion.

And it was contended, that the mafcer, from
the time of his appointment, has the fole com-
mand of the fliip veded in him, and cannot be dif-
placed without committing fome oifence fufHcient
to forfeit his rights and juftify a difmiiTion.
That after iigning bills of lading, he becomes an-
fwerable to the freighters for the delivery of the
cargo, and that the owners cannot by their act exo-
nerate him from this charge, whilfl the bills of la-
ding figned with his hand, remain in the pofiefTion
of the freighters : that the libellant, confidering
himfelfas engaged for this voyage, had negle6i:ea
to feek for any other appointment ; and that the


r 26 I

owners difcharging him at this time, was an inju-
ry which the court ought injufliice to redrefs by
compelling them to reinilate him in his office.

In behalf of the refpondents it was urged, that
the owners of a Ihip have, and ought to have, a
right to remove the mailer at pleafure ; becaufe
their interefls are fo deeply concerned in the ap-
pointment, that they are anfwerable not only for
his im.prudent condu^l, but are bound by con-
trails he may legally make on account of the con-
cern : that if, after their their choice of a mailer,
his appointment fliould be deemed irrevocable for
ihevoyagejUnlefs fome grofs offence can be proved,
the owners will be at the mercy of the mafter,
who, by his weak or wicked conduct, may bring
them to ruin. That if when the owners have difmiffed
the mafler, the court fhould undertake to reinflatc
him, contrary to their judgment and inclination,
and fo force him upon them, the court and not
the owners, ought to be anfwerable to the freigh-
ters for any confequences that may enfiie : that
neither the charter-party, Hiipping articles, or
bills of lading, prohibit a change of the ma-
fter, as the contracts made with him are made
in his official and not in his perfonal capa-
city : that the mafter is in fad the reprefcnta-
tive of the owners, and not himfelf perfonally


[ 27 ]

bound, neither is he anfwerable for the condu£t
of his fucceflbr : that in cafe an adion fhould be
brought againft him for a breach of contract on
the bills of lading, he might plead his difmilTion
by the owners, and it would be good in law :
that the fubordinate officers are appointed by the
mafter of a fhip, and if they fhould mifbehave, or
prove jnfufficient or unfafe, the owners have no
remedy but by the removal of the mafler : that
if owners are bound by the appointment of a ma-
fler to continue him for the voyage, the mafler
ought alfo to be bound to perform the voyage,
even againft his interefl or inchnation ; but if, in
cafe of the mafler's refufal, the owners fliould li-
bel againft him in the admiralty, the court could
give no redrefs, becaufe the court cannot award
damages, neither can it compel the mafler to a fpe-»
cific performance of his contrail, from the nature of
the fervice : that the mafler's appointment is, and
ought to be during pleafure only : that the fame pow-
er which appoints can remove : that if a mafler
fuffers injury by an unreafonable difmifTion, he
may have his remedy at common law, where ample
recompence in damages will be made to him : and
finally, that whatever inconveniences may arife
to maflers being fubjedted to the caprice of owners


[ 28 1

^'f veilels, much greater would arlfe to the ow-
ners, fliould they be compelled to retain in their
fervice mafters once appointed, however con-
trary to their judgment or intereft ; and that no
inftance c:in be produced of a mailer being thus
farced upon the owners of a fcip hy any court

To which, council for the Hbellant replied—
That this caufe came properly before the court of
admiralty : that where a court hath the right to
take cognizance of an injury, it foilov/s necelTarily
that it can give redrefs : that if the court cannot
avv^ard damages, it can order a fpecific performance
of the contraft : that the court can compel the
mafler to fuch performance ; and if he refufes^
can attach his perfon, and oblige him to give fe-
curity for the completion of his contraft ; and^i
therefore, the jurifdiclion is competent : that it
would be unjuft to fend the mailer to common law
for redrefs, on the owner's breach of contrail, as
the owmers may fail and be unable to pay dama-
ges, and therefore the ihip ought to be his certain
and proper fecurity : that all contrails ought to be
facred and mutual, being founded on reciprocity ;
and it would be abfurd to alledge, that the mafter
is bound on his part, and the owners not bound
en theirs : that a mader engaged for a voyage, is

L 29 3

like a fervant indented for a certain time; ar.dtliat
the engagement or indenture cannot be dilTolved,
^luring the terms, but by mutual confent : that this
velTel was chartered to the freighter, who acquired
by the charter-party a temporary property in her,
and the owners had nothing to do with her for the
time, the (liip being under the fame circumtlances
with a houfe leafed for a term : that after the char-
tei'-pariy is figned, and the goods laden on board,
the .owners cannot difcharge the mailer at their
pleaiure ; as his good chara^fler and abiUties might
have been the inducement which led the freighter
to make choice of that fliip in pi-eference : and,,
lafliy, that if no initance can be found of a mailer's
^)eing forced upon the owners of a iliip, neither
can any authority be produced, giving the owners
the arbitrary power of difmiiTmg the mafler at
pleafure, and without alTigning fufHcient caufe.

j U D G M E N T,

After having carefully confidered the argu-
ments advanced, and the authorities cited in this
caufe, it appears to me unneceffary to purfue the
whole tra(5i: of arp-ument that hath been taken on
this pccafion. The decifion of the caufe refls fole-
ly on the nature of the contrail bep.veen the cv/-


r 30 ]

h^rs of a flilp and the captain they employ. And
the terms or fubftance of fuch a contraft is, in my
opinion this, viz. If the mafter well and faithfully
performs the duties of his flation, the owners, on
on their part, are bound to pay the ftipulated wa-
ges, and allow him all the cuilomary privileges of
his office. But it does not feem to be any part or
the contrad, that a mafter once engaged, (hall be
mailer for the voyage at all events. This might
be extremely injurious to owners, on account of
the very extenfive powers a mafler hath over their
property. And however hard it may appear that
that the mafler fliould be fubjecl to the caprice of
his owners in this refpc(ft:, he mufl confider it as
one of the unavoidable inconveniences of his oc-
cupation, and in cafes of real injury apply to the
laws of his country for redrefs. Much greater
would the dans^er be to owners of velTels, and in-
deed to commerce in general, if the appointment
of a mailer fhould be irrevocable for the voyage^
Whatever good opinion an owner may have of the
mafter, at the time of his appointment, he may
find fufficient reafon afterwards to change his mind,
and yet not be able to produce legal proof of his
defeftion or inability. Fidelity or infidelity before
a fervice performed, is a matter of opinion only,
rind it would be an unreafonablc hardfliip to com-

r 31 ]

pel an owner to continue what was originally a
voluntary trull, in the hands of a perfon of whom
he may have found fubfequent reafons to believe
that he may prove either unfaithful or unflvilful,
although he may not be able to charge him with
any pofitive offence : but I cannot fee hov/ this
court can interfere to any effeft. If the court
fliould decree that the owners fhall receive the
libellant on board, as mader for the voyage con-
trafled for ; have not the owners a power to fell
their Ihip, to lay her up, or totally change the
voyage, and fo evade the decree? Or, if a mafter
fhould refufe to go the voyage for which he en-
gaged, can this court compel a fpecific performance
of the duties of his office? The remedy in both
cafes mufl be in damages for a breach of contrail:,
to which the common law is mod competent. Let
the bill be difmiiTed.

The libellant appealed from this judgment, and
the caufe was again fully argued before the judges
of the high court of errors and appeals ; but the li-
bel was finally difmiffed.


t 32 1


Jl he marilial of the court brought in 2.n account
againfl the fliip Golden Rofe^ for fundry expendi-
tures made, and fervices done for the faid iliip and
her cargo ; and prayed the judge to dircifl what
parts of the faid account fliculd be charged to the
fhip, and what to the cargo.

The judge, after hearing argument thereupon,

Tlrjl^ That captain Vanderwindt pay for the pi-
lotage of bis fiiip into port \ becaufe this expence
Yv-ould have accrued to him, if he had arrived at
the port of his deftination.

Secondly^ That he alfo pay all reafonable char-
ges for wharfage and faftenings : becaufe, by the
terms of the charter-party, he is to bring his ihip
to a fit place for unlading, and becaufe thofe ex-
pences are necelTary to the iafety of his fliip.

Thirdly, That the cargo be charged with all


t 33 J

reafonable expences attending the unlading of the
fliip : becaufe by the fifth article of the charter-
party, it is covenanted, that the freighter fliall caufs
the cargo to be brought on board, and at the place
of difcharge, taken from on board, free of char-

Fourthly^ That the expence of cutting the Ihip
out of the ice be borne by the fliip and cargo, in
equal proportions, provided the cargo v^as on
board when this fervice was done — otherwife, by
the fhip only : becaufe this was equally neceiTary
for the prefervation of both.

Fifthly^ That the marfhars bill for keeping
watch on board, whilfl the property was in his
poffeffion, as alfo the court charges, or cofls of
fuit, be charged to the cargo : becaufe the fliip
on the trial v/as fully acquitted.

Lajlly\ Wherever a charge is allotted In the
above apportionment to be paid by the cargo, it
is to be underflood that the libellants are to pay
one half thereof, and Colloghan and Sons, or their
agents, the other half : becaufe thofe charges arc
fappofed to be dedudled from the whole cargo be-
fore diftribution made between the hbellants and
claimants, according to the decree.

Vol. hi. C Deca-

f 34 ]

D U C A T U R,

The Brig NYMPH.

Claim by Thomas Irwin ^ aL

XT appeared in teflimony that the Brig Nympli-
(formerly called the Neptune), had been the pro-
perty of the claimants, and was captured by the
Britifli fhip Iris on the 22'''^ or 23^^ of April 1780 :
that on the 2 1**^5 and 22'''^ of the fame month, three
other veffels were aifo taken by the fame fliip, all
which prizes were fent into New York : that on
the 28^'' of the fame month the captains of thefe
four prizes were all taken before the judge of ad-
miralty there, and examined, preparatory to the
trial and condemnation of their veflels : that, a-
bout a fortnight after, one of the faid four cap-

I -35 1

tains was told by fome of the officers of the Iri?^
and alfo by fome of the crew, that they had re-
ceived their ihares of the four prizes aforefaid.
It was alfo in proof, that the faid four veflels had
been advertifed for fale at the coifee-houfe in
New York ; and one of them, viz. the Hetty, war.
particularly remembered to have been advertifed,
as a condemned prize : that the Neptune had been
purchafed by merchants in New York ; and that on
the 13^'' of May following ilie v/as commifTioned
as a privateer, by the name of the Nymph, to cruiie
againfl the velTels of the United States of Amcricai
Laflly, it appeared this brig failed from New York
on the 21** and was captured by the libellant on
the 25''' of May*

Against the libel of the captors there was a
claim filed, by Thomas Irwin and others, the for-
mer owners J founded on the ordinance of congrefs
of the 5th of December 1775, upon a fuggeflion
that this veffel could not have been condemned in
the court of admiralty at New York previous to
the re-capture : and in fupport of this fuggedion,
a Britiili afl of parliament w^as exhibited, wherein
is fet forth at large the mode in which the vef-
fels captured from the United States of America
lliall be proceeded againfl in their courts of ad-
miralty. Which a6l dire£ls, that for the '^nore

C 2 fpeedy

r 3« ]

More fpeedy condemnation of fuch veffels, ttic
whole procefs fliall be completed in 28 days from
the firfl application made to the judge by the cap-
tors ; and the claimants alledged that this brig
not only failed from New York, but was re-cap-
tured by the libellant before the 28 days were
accompliflied;andtherefore inferred, that fhe could
could not have been condemned under this aft:
that all the evidence produced by the libellant to
proved a condemnation was merely hearfay, and
Ought to have no weight, efpecially as there was
no mention made ofanyfuch condemnation amongft
the papers found on board, as is ufual. And
laftly, that her having been fold, commilTioned, and
failing, and the money paid for purchaling her,
being diftributed amongfi: the firfl captors (if true}
is Hill no proof, or even prefumption, of her con-
demnation ; becaufe it is cuflomary for the judge
to permit prizes to be fold before trial, the
parties giving fecurity ; and infifted, that before
the property can totally diveft, the condemnation
mufl be direftly proved, according to the ordi-
nance of December 5th 1775.

Whereupon the judge obferved,

That the manifefl: fpirit of the ordinance of
congrefs of December 5th is truly complied with


I 37 1

when the property is fully and fairly diveflcd :
that the moll direct and decifive way of afcertain-
ing fuch diveflure is by legal condemnation in the
enemy's court of admiralty ; and therefore the or-
dinance makes that the criterion ; but that con-
grefs could not expe^l: that full and diredt proof of
fuch condemnation could in all cafes be produced,
as the documents necefTary to fuch proof cannot
always be in power of the parties ; ftrong pre-
furaption muft therefore often fupply the place
of abfolute proof : that this brig having been
captured, taken into the enemy's port, fold by or-
der of the judge, commifTioncd under a new
name, fitted out and fent by new owners on a
cruize, muft found a violent prefumption that fhe
had been legally condemned as lawful prize to the
iirfl captors ; that whether Jhe had been formal-
ly condemned or not, thefe circumftances were
fully fufficient to a total divefture of the property
from the former owners : that the a£l of parlia-
ment referred to, is profeiTedly defigned to Ihorten
the proccfs of the courts of admiralty, and directs
that it fhall be completed within 28 days ; but
does not prohibit its being done in a fhorter time :
that as proofs have been given that fome veifels
have been condemned in a fliorter time, itis pofTible,
and even probable, that this brig might alfo have

C 3 been

[ 38 J

been fo condemned, and that fuch a prefumptlon
is jiiilifiable by all the circumflances of the cafe.


That the brig be condemned as lawful prize
to the libellants, .and that the claim be dif-

The Sloop SARAH.

Stiles^ and others^ claimants.

i HE Sloop Sarah, being Bermudian property,
failed with a cargo of onions, fugar, fait, gin,
flour and oil, from from Bermudas for Charleftown
jn South Carolina, the owners knowing at the time
of her faihng that Charleftown v/as then in


[ 39 ]

the pofleffion of the Britifli troops. The iibel-
lants difcovered and captured her on Gharles-
town bar, at the entrance of the harbour, brought
her into the port of Philadelphia, and libelled
againft her as prize.

Whereupon a claim was filed in behalf of
Stiles, and others, the former owners.

And it was urged in fupport of the claim, that
by an ordinance of congrefs of the 24-th of July
iyy6^ the property of Bermudians was exempted
from confifcation : that under the fanftion of this
ordinance the Bermudians had traded with the Uni-
ted States daring the war*, and frequently fupplied
their neceffities at a very great hazard : and that
Stiles the claimant in particular had been twice ta-
ken prifoner by the Britifli for trading with the
fabjefts of the United States: that the prefent car-
go was not fent as fupplies to the enemy : that
the flour on board was too inconflderable a quanti-
ty to anfwer any fuch purpofe , and that fait could
be imported into Charlcfl:own much more con-
veniently and cheaper from Turks Ifland than
from Bermudas. That the truth is, this cargo
was defigned in part to difcharge a debt due from
the claimants to a certain Mr Loyd a known


L 40 ]

friend to the American caufe, and now a prifoner
in Charleflown, and in part to purchafe necef-^
faries for the inhabitants of Bermudas : that
the ordinance of congrefs prohibiting any veiTels
from carrying fupplies, &c. to any part of the Uni-
ted States in the polTefrion of the enemy, cannot
be fuppofed to extend to vefTels carrying provifions
to reUeve the wants of the fubjeds of thofe flates
who are prifoners and in diilrefs, for that fuch an
extenfion would be contrary to reafon, humanity,
and good policy. Teflimony was alfo produced to
prove, that there was really a debt due from the
claimants to Mr Loyd at Charleftown ; and that
the owners, or fome of them, had declared before
the veffel failed from Bermudas, that part of the
cargo was to difcharge the debt due to Mr. Loyd,
and the remainder to purchafe provifions.

The arguments being clofed, the judge ob-

That the ordinance of congrefs in favour of
the inhabitants of Bermudas, a people under the
fovereignty and allegiance of Great Britain, could
never be intended to put them on a better foot-
ing with refpedt to the war, than the citizens of
America, or the citizens of neutral powers ; and
that there could be but little doubt, but that an

A me-

[ 41 ]

American veffel, taken In the fituation of the brig
Sarah, would have been coniifcated : that the
plea, that llie was carrying fupplies to a prifoner,
ought to have been fupported by full and diredt
teftimony, to counteract the violent prefumption to
the contrary ; but here was no dire6l teftimony to
that point, and even fuppofing the fuggeftion
to be true, as to the good intentions of the
claimants, they had not conducted the bufmefs
according to the known rules of war ; for leave
fliould have been firft obtained from the Britifli
commander at Charleflown, even for Bermu-
dians to fend in fupplies to his prifoners. It is
indeed in proof, that there is a debt due from the
claimants to Mr. Loyd, a prifoner in Charleflown ;
and that one of the ovv^ners was heard to fay, that
part of this cargo v/as to difcharge that debt, and
the remainder to purchafe provifions : but it no
where appears, what v/as the amount of this
debt, a very necelfary circumftance, if all other
objeclions were out of the way ; otherwife, un-
der cover of fmall and trifling debts due to pri-
foners, large and important fupplies might be in-
troduced to the enemy ; and at any rate, the plea
of paying a debt due could extend no further than
the amount of that debt. But in oppofition to
thefe appearances of good InLcntions, it is in proof,
that the owners originally defigned this vefTel and


C 42 J

cargo for the Weft India Iflands, but change'd the
voyage as foon as it was known that Charleftown
had furrendered to the enemy.

I adjudge that this vefTel and cargo be con-
demned as prize to the Hbellants, and that the
claim be difmiffed.



A HIS fhip was taken on her way from Liverf-
pool to Archangel, having on board a cargo of
fait and a hogfliead of rum. The captors fent in
with the prize, the iliip's gunner, and three lads,
prifoners ; alfo two cuftom-houfe cockets, and an im-
perfe£l logbook or journal, faid to be all the papers

• found

C 43 1

found on board at the time flie was taken. One
of thcfe cockets refpe(5led the fait on board, and
the other, the rum. The prize-mafter fwore that
there were no other papers found in the lliip ; and
the gunner depofed, that the vefTel was the pro-
perty of Ormfon and Son, merchants in Liverpool,
but that the fait and rum were fliipped by a con-
ful from the court of Ruilia, at Liverpool, on ac-
count of the emprefs of RuiTia.

On this appearance of the cargo's being neu-
tral property, the judge dire^led the attorney gene-
ral to file and profecutea claim for the faid cargo
in behalf of the her majedy Ruifia.

The caufe being (ullj argued, the judge
declared himfelf as follows :

It is not effential to the prefent enquiry, 'whether
it is probable or not, that there is at Liverpool fuch
a chara6ler as a conful from the court of Ruffia, or
what the rights and privileges of a conful are, by
the law of nations ; fubjecls which have perhaps
been too largely difcuffed in the courfe of this ar-
gument. The only queilion feems to be, Is there
fuiiicient proof or not that this cargo was fliipped
on account of her majefly of Ruffia, by her fac-

r 44 1

tor or agent at Liverpool ? or, in other words. Is
the cargo neutral property or not ?

The teflimony, by which this queflion is to be
determined, (lands thus : On the one fide are the
cuflom-houfe cockets of Liverpool, certifying the
fait to have been fliipped by MelTrs. Gilbert and
co?npany^ merchants, of Liverpool, and the rum
to have been fliipped by a Mr. Roe^ of the fame
place* On the other fide we have the depofition
of the gunner of the fliip, who belonged to her,
as he fays, at the time ihe was taking in her lading
at Liverpool ; and exprefsly fwears, that both the
fait and rum were fliipped by a Ruffian conful at
Liverpool, on account of the emprefs ; and gives
feveral collateral circuraftances to fupport the
truth of his allegation.

It has been fuggefled on the part of the claim-
ant, that cuilom-houfe papers are often fallacious,
and not conclufive evidence : that, for various
mercantile reafons, borrowed names are often fub-
ilituted for the names of the real fliippers : that
the depofition of the gunner is dire6l and abfolute ;
and that from the feeming mutilation of the log-
book, and the papers forwarded being fo few,
there is reafon to fafpecl a fuppreflion of evidence
on the part of the captors, in order to conceal


r 45 ]

from the court the real proprietor of this cargo ;
and that this fufpicion is further countenanced by
the captors not fending forward the captain or
inate of the prize, as by his inilrudlions he ought
to have done.

Having confidcred, as well thefe, as the argu-
mcnts adduced in behalf of the libellants, I am of
opinion. That the tedimony of the gunner, found-^
ed on report only, concerning a matter in which
he cannot be fuppofed to have any certain or ac-
curate knowledge, however honellly or impartial-
ly given, ought not to outweigh the certiiied de-
claration of regular, official papers, unlefs fome
probable proof can be given, or circumftances ad-
duced to ihew, that thefe papers are, or may be,
fallacious. There does not, in the prefent cafe^
appear any reafon, why a Ruffian fadlor or agent
fhould make ufe of the names of Liverpool
chants to cover his neutral property, which would
have been fecure from confifcation without any
fuch artifice : that a Britiili merchant fhould, in
the prefent v/ar, flrive to conceal his property un-
der a neutral name is a very natural fiiggeflion ;
but common fenfe will not allow the fuppofition,
that a neutral owner, already fecure, would rifk pro-
perty under the borrowed names of perfons, whofe
names alone would endanger confifcation in cafe


L 46 1

'of capture. The condition of the papers, and thfc
hot fending forward the captain or mate of the
prize, induce a cenfure of negligence on the part
of the captors ; but a wilful fupprellion of evidence
for the evafion of juflice, is a crime of fo heinous

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